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NILQ 63(4): 509–32
Modernising environmental regulation in
Northern Ireland: a case study in devolved
decision-making
SharoN TurNer aNd CIara BreNNaN
School of Law, Queen’s university Belfast *
Introduction
F or over a decade, controversy about the quality of environmental regulation has cast a
shadow over the effectiveness of environmental governance in Northern Ireland. Most
fundamentally this debate has centred on a crisis of confidence about the quality of
regulation and a consensus that effective reform depends on the externalisation of this
responsibility from central government. Not surprisingly, the causes of weak regulation were
rooted in the eclipsing impact of the Troubles and the fossilisation of government that
occurred during the decades of Direct Rule.1 However, although the first steps towards
meaningful reform were eventually taken under Direct Rule, the restoration of devolution
and the stabilising power-sharing process has meant that the trajectory of regulatory reform
has been largely shaped by a devolved administration. The purpose of this paper is to
examine the nature and implications of that process. Pressure for regulatory reform is an
issue that has confronted both configurations of Northern Ireland’s power-sharing
Executive. Despite its brief and tumultuous lifespan, the first Ulster Unionist Party
(UUP)/Social Democratic and Labour Party (SDLP)-led administration was immediately
faced not only with the evidence of serious regulatory dysfunction but also the first stage of
what became a concerted civil society campaign for independent regulation. The collapse of
power-sharing did nothing to quell this pressure. Instead, when devolution was restored five
years later the new Democratic Unionist/Sinn Fein-led administration was faced once again
with pressure for regulatory reform. However, this time the case for independent regulation
was supported not only by civil society, but also the overwhelming majority of stakeholders
to this governance process, including all but one of the parties sharing power and all but one
of the industries subject to environmental regulation. This consensus was furthermore
* School of Law, Queen’s University Belfast, 27–30 University Square, Belfast BT7 1NN. Email:
s.turner@qub.ac.uk and cbrennan12@qub.ac.uk
1 The impact of the conflict on environmental governance has been discussed in detail elsewhere. See, for
example, S Turner and K Morrow, Northern Ireland Environmental Law (Gill and Macmillan 1997); K Morrow
and S Turner, ‘The More Things Change, the More They Stay the Same? Environmental Law, Policy and
Funding in Northern Ireland’ (1998) 10(1) Journal of Environmental Law 41–59.510 Northern Ireland Legal Quarterly 63(4)
supported by an independent review of the arrangements for environmental governance that
had been commissioned by the Direct Rule administration during the hiatus in devolution.2
Despite the cacophony of voices calling for structural reform, the newly restored
devolved Executive proved unable to facilitate that process. The political dynamics of
devolution combined with the arrangements for decision-making within the power-sharing
Executive effectively enabled the largest party sharing power to unilaterally block reform.
Although the new Democratic Unionist Minister for the Environment (then Arlene Foster)
acknowledged the need for improvement in the quality of regulation and committed to
investment in this context, her party opposed the externalisation of this function from the
Department of the Environment (DOE) and thus the change viewed by their partners in
the power-sharing Executive as the necessary foundation stone for credible regulatory
reform. While this debate arguably demonstrated the coming of age of the environment as
a mainstream political issue in Northern Ireland and, indeed, fostered a maturing of civil
society in this sector, the devolved administration’s handling of this issue provided a
powerful and unsettling insight into the nature and culture of devolved government and
governance. While the legacy of weak regulation inherited by the devolved administration
can be blamed on years of conflict and political absenteeism during Direct Rule, the debate
surrounding its modernisation makes clear that the very different but real democratic
limitations inherent in the region’s devolution settlement will also function to stifle political
stewardship of the environment. Regrettably, but most inevitably, this will force judicial
resolution of the core structural arrangements for delivering environmental regulation, and
thus diminish democratic control of a key aspect of economic regulation in post-conflict
Northern Ireland.
Facing the legacy of neglect
It is probably an understatement to say that when the Good Friday Agreement was signed
in 1998 the state of the regional environment and the arrangements for its protection were
at best marginal to the concerns of the negotiating parties, not least Northern Ireland’s
major political parties. The political challenges of peace-building and power-sharing not
surprisingly dominated the agenda for Northern Ireland’s first power-sharing Executive.
However, despite these pressures and its brief lifespan, the first power-sharing Executive
was nevertheless forced to immediately grapple with the consequences of decades of
neglected environmental governance. In essence, the UUP/SDLP-led administration
inherited a system of environmental governance defined by serious legislative antiquation
and very weak regulation. However, the proverbial ink was scarcely dry on the Good Friday
Agreement when it was also forced to confront the legal and financial consequences of
devolved responsibility for that inheritance. During the 1990s, endemic failure by
government in Northern Ireland to ensure the timely and complete transposition of EU
Directives on the environment and failure to invest in the water and sewerage infrastructure
necessary to ensure operational compliance with the Urban Waste Water Treatment
Directive 91/271/EEC3 had led the EU Commission to commence numerous ‘infraction’
proceedings against the UK.4 By the time devolution was restored in 1998, UK central
government and the new devolved administration faced a phalanx of serious and advanced
2 REGNI, Foundations for the Future: The Review of Environmental Governance (2007)
, discussed in more detail below. See
also S Turner, ‘Laying the Foundations for a Sustainable Northern Ireland’ (2007) 58 Northern Ireland Legal
Quarterly 422–58.
3 OJ L135/40.
4 S Turner, ‘Transforming Environmental Governance in Northern Ireland: Part One: The Process of Policy
Renewal’ (2006) 18 Journal of Environmental Law 55–87.Modernising environmental regulation in Northern Ireland 511
EU enforcement proceedings. The profound impact of EU pressure in forcing the first
power-sharing Executive to invest in an immediate and extensive process of environmental
law reform has already been the subject of detailed analysis by the present authors.5
However, while the mutual exposure of UK central government and the devolved
administration to the legal and potentially serious financial consequences of EU infraction
action undoubtedly induced the political will necessary to deliver a major programme of
legislative and infrastructural modernisation, a similar dynamic did not apply to the equally
dysfunctional process of environmental regulation.
On one level the restoration of devolution also coincided with an unveiling of serious
regulatory weaknesses. Within weeks of the signing of the Good Friday Agreement, the
Northern Ireland Audit Office published the first detailed analysis of the state of water
pollution regulation in the region.6 This report was essentially a searing analysis of failure
by the DOE to discharge its responsibilities as Northern Ireland’s environmental regulator;
however, it was not an isolated publication. Instead it became the first in a series of highly
critical reports published by the Audit Office, the Public Accounts Committee (PAC), the
Northern Ireland Affairs Committee (NIAC) and the Criminal Justice Inspectorate (CJI)
during the period 1998 to 2007 concerning the quality of environmental regulation in the
region. Their cumulative critique laid bare a landscape of enduring and serious failure by the
DOE to discharge almost every aspect of its duty as environmental regulator.7 The nature
and scale of this dysfunction has already been the subject of detailed analysis by the present
authors.8 Suffice it for present purposes to state that these reports revealed a catalogue of
lax, fragmented, inconsistent and non-transparent regulation and a particularly problematic
approach to enforcing the rule of environmental law. However, while the official scrutiny
community operating in the region gradually documented the systemic scale of the
regulatory dysfunction that pertained in Northern Ireland, it did not fall within the ambit
of the EU enforcement action then underway. Thus, while the first devolved administration
began to face significant internal pressure for regulatory reform, this did not extend to legal,
financial or political pressure from the EU or Whitehall. In sharp contrast to the extensive
modernisation programmes launched to overhaul the legislative framework governing the
environment and the region’s water and sewerage treatment infrastructure, the devolved
administration’s response to the evidence of seriously weakened environmental regulation
revealed if anything, a willingness to exploit rather than resolve the problem.
The implications of weak regulation and in particular the centralised nature of this
responsibility was cast into graphic relief by the manner in which the first power-sharing
Executive handled the pressure to meet decades of unmet but not well aligned economic
and environmental needs. On the one hand, the consolidating peace process and
burgeoning property market on the island had fuelled escalating pressure for economic
regeneration and development within the region. However, this pressure was arising in the
context of a region with almost Victorian standards of water and sewerage infrastructure,
which was itself the subject of concerted EU infraction action.9 The devolved Minister for
5 Turner (n 4).
6 Northern Ireland Audit Office (NIAO), Control of River Pollution in Northern Ireland, HC (1997–1998) 693.
7 Northern Ireland Assembly PAC, Third Report, Control of River Pollution in Northern Ireland (2001)
; NIAO, Areas of Special Scientific Interest, HC
(2003–2004) 499; House of Commons NIAC, Waste Management Strategy in Northern Ireland, HC (2004–2005)
349-I; House of Commons Committee of Public Accounts, Northern Ireland’s Waste Management Strategy, HC
(2005–2006) 74; NIAO, Northern Ireland’s Waste Management Strategy, HC (2005–2006) 88.
8 S Turner, ‘Transforming Environmental Governance in Northern Ireland. Part Two: The Case of
Environmental Regulation’ (2006) 18 Journal of Environmental Law 245–75, at 266–9.
9 Turner (n 4).512 Northern Ireland Legal Quarterly 63(4)
the Environment (then Dermott Nesbitt, UUP) was consequently faced with expressions of
serious concern by the Executive Agency within his department responsible for
environmental regulation (then called the Environment and Heritage Service) as to the legal
and environmental implications of permitting further development in areas lacking
appropriate sewage treatment, while at the same time the Executive Agency within his
department responsible for development control in Northern Ireland (the Planning Service)
faced intense pressure to facilitate economic regeneration. Nesbitt made an initial decision
to impose a moratorium on all development in what became known as sewage ‘hotspots’ to
enable the department to consider the legal, environmental, economic and operational
implications of this situation. However, this review resulted not in a decision to restrain
development or even to require developers to share the costs of ensuring temporary sewage
treatment for proposed development, but a decision to constrain the environmental
regulator. Nesbitt acknowledged that serious and potentially irreversible environmental
damage would be caused by further development in areas without appropriate sewage
treatment. Although the devolved administration had already signalled its commitment to a
major programme of infrastructure investment to respond to EU infraction pressure, it was
also clear this process would take years to deliver. Consequently, the minister announced
that the most ‘pragmatic’ solution was to enable the regulator to ‘alert’ the planning
authorities to the environmental implications of proposed development but to prevent it
from lodging a formal objection to the granting of development consent.
Quite apart from the disquiet caused by evidence of weak environmental regulation
being delivered by the DOE, this decision cast into sharp relief the even more fundamental
problem arising from the centralised nature of responsibility for this function. Despite the
creation of independent regulators across the rest of the UK and Ireland during the 1990s,
successive Direct Rule administrations had resisted pressure for equivalent structural reform
in Northern Ireland.10 This function thus remained the responsibility of the DOE, and
although delivered by an Executive Agency possessed of its own resources and staff, it
lacked any separate legal identity. The ‘hotspots’ debacle highlighted not only the
governance implications of centralised regulation, but also the willingness by Northern
Ireland’s new political class to exploit the weaknesses inherent in these arrangements in
order to facilitate even crude economic development and build political capital. However, it
also marked a turning point in the relationship between government and the region’s
environmental non-governmental organisation (ENGO) sector.
a maturing of civil society
In sharp contrast to their counterparts in the fields of human rights and equality in Northern
Ireland and their sectoral counterparts in Britain, the ENGO sector on the island of Ireland
is relatively underdeveloped.11 Environmental campaigning on the island has historically
been characterised by an emphasis on highly localised campaigning;12 however, in Northern
Ireland a range of distinctive factors flowing from the dynamics of Direct Rule had
additionally forged an ENGO culture that valued access to government over robust public
debate. In essence, the absence of accountability levers and the highly centralised nature of
environmental governance under Direct Rule had created a strong disincentive to the high-
10 The reasons for which are discussed by Turner (n 4) 249–54.
11 See L Leonard, The Environmental Movement in Ireland (Springer 2007) and J Barry and P Doran, ‘Environmental
Movements in Ireland: North and South’ in T McDonagh, F Varley and S Shorthall (eds), A Living Countryside
(Ashgate 2009) 321–41.
12 Barry and Doran (n 11).Modernising environmental regulation in Northern Ireland 513
profile public campaigning on the environment common in other UK jurisdictions.13 Direct
Rule ministers were also frequently absent leaving civil servants to assume a greater
responsibility for decision-making.14 However, the small scale of government and the
heightened role of officials led many within the civil service to personalise public criticism
of government activity.15 Direct Rule also made it unattractive for many of the UK’s leading
ENGOs to fund anything other than a relatively small presence in Northern Ireland. The
organisational risks and operational burdens posed by public campaigning were further
exaggerated for this small sector due to the absence of a key participant in the public debate;
namely, the regulator itself. As civil servants, officials within the regulator could not publicly
contradict either the Minister for the Environment or the wider government and thus could
not represent the public interest in the environment.
When devolution was restored, the spirit of political optimism that surrounded the new
power-sharing Executive but also the widely understood fragility of this process initially
compounded this sector’s innate aversion to criticising government.16 However, the
spectacle of Nesbitt’s blatant political interference in the process of environmental
regulation prompted Friends of the Earth (NI) to accuse him of ‘gagging’ the regulator, and
to mount the first highly critical campaign of public opposition ever launched by an ENGO
in Northern Ireland.17 Although this more confrontational style of political campaigning
certainly alienated senior officials within the department and initially their ENGO
counterparts,18 ultimately it catalysed an important process of maturing within the sector
as a whole. In the face of the DOE’s failure to formulate a meaningful reform agenda to
respond to the by then mounting evidence of regulatory dysfunction, Friends of the Earth
led the formation of a coalition comprising the region’s nine largest ENGOs for the
purposes of launching a united public campaign for the externalisation of this responsibility
to an independent environmental agency. The formation of this coalition was certainly
facilitated by greater investment in regional capacity by the major national ENGOs, which
flowed from their expectation that devolution would create a more fruitful political context
for public campaigning. However, the decision to collaborate not only protected individual
groups from government pressure but enabled the members of the coalition to find their
separate and collective public voice and with it came a process of maturing within the
sector. But perhaps even more importantly, the high-profile, four-year campaign they waged
provided not only a policy leadership completely lacking within central government, but was
successful in bringing the environment from the remote margins to the mainstream of the
post-conflict political agenda emerging in Northern Ireland.
Pressure for reform on the cusp of political transition
Despite the collapse of devolution in October 2002, the campaign coalition was formally
launched in 2003.19 Most fundamentally it argued that credible environmental regulation
13 These observations are based on interviews with senior figures in the ENGO sector in the region and the
direct professional observations of Professor Turner during the REGNI process and during an extended
secondment to the DOE as a senior legal adviser.
14 Turner and Morrow (n 1).
15 See n 13.
16 Ibid.
17 Turner (n 4).
18 Interview with former Director of Friends of the Earth; see also J Barry, ‘“It Ain’t Easy Being Green”:
Sustainable Development between Environment and Economy in Northern Ireland’ (2009) 24 Irish Political
Studies 45–66.
19 The coalition consisted of the Conservation Volunteers, Friends of the Earth, National Trust, Northern Ireland
Environment Link, RSPB, Ulster Wildlife Trust, Wildfowl and Wetlands Trust, Woodland Trust and WWF.514 Northern Ireland Legal Quarterly 63(4)
required the externalisation of responsibility for this function to an independent
environmental protection agency akin to those already established in the UK and Ireland.
However, the coalition commissioned an independent expert analysis of the various options
for structural reform and used the resultant report as the basis for a formal public
consultation exercise to assess stakeholder support for externalisation of this function.20
The responses received were also the subject of independent analysis, which reported
overwhelming support for the transfer of this responsibility to an independent arms-length
entity.21 Although stakeholders varied in their views as to the level of independence
necessary for effective regulation, only one expressed strong opposition to externalisation
per se; namely, the Ulster Farmers’ Union, which argued that the existing system could be
made to function effectively through a process of internal reform.22 However, as the
campaign matured so too did the ENGO agenda. In 2005, the coalition hosted a Chatham
House conference to discuss the options for and implications of structural reform, which
was attended by senior officials from UK and Irish environmental regulators and core
Northern Ireland departments engaged in environmental governance as well as senior
representatives from the major regulated industries, the UK Sustainable Development
Commission, UK Environmental Law Association, the UK judiciary, the office of the
Northern Ireland Lord Chief Justice and leading academic commentators on this issue.23
The meeting debated and supported the coalition’s proposal that significant structural
change should be preceded by an independent expert review of the region’s wider
arrangements for environmental governance, on the grounds that decades of Direct Rule
and conflict had significantly distorted this landscape. Direct Rule ministers indicated their
support in principle, but were initially unwilling to instigate such a major process of reform
because of the expectation that devolution would be imminently restored. However, by
2005, against a hinterland of apparently intractable deadlock in constitutional negotiations,
the Direct Rule Environment Minister (then Jeff Rooker) announced his support for the
creation of an independent Environment Agency and his decision to commission the
independent review of environmental governance demanded by ENGOs.24
The Review of Environmental Governance (REGNI) formally commenced in January
2006.25 Consistent with its terms of reference, it was conducted in a participative manner
and involved recorded public meetings with an extensive range of the key stakeholders to
this debate, spanning not only civil society but also business, industry, almost all of
Northern Ireland’s political parties, government advisory bodies, local and central
government and the environmental regulator itself.26 The final report of the review,
Foundations for the Future: A Review of Environmental Governance, was published in June 2007.27
Although its recommendations spanned the entire governance regime, the report’s core
findings concerned the process of environmental regulation. The review concluded that the
20 R Macrory, Transparency and Trust: Reshaping Environmental Governance in Northern Ireland (2004)
.
21 L Fawcett, Environmental Protection Consultation: Analysis of Responses (2004) at 2. Responses were received from 42 NGOs, 39 individuals, 14 private
sector companies and organisations, four political parties and three public sector organisations.
22 Ibid 8.
23 Under Chatham House rules individual delegates cannot be named.
24 Friends of the Earth Northern Ireland Newsletter, ‘EPA Inquiry Begins’ (2005) (11 Autumn)
.
25 The panel was comprised of Professors Tom Burke (chair), Sharon Turner and Mr Gordon Bell (then the
recently retired CEO of Liberty IT).
26 For a full discussion of the process see, Turner (n 2).
27 REGNI (n 2).Modernising environmental regulation in Northern Ireland 515
present institutional arrangements for environmental regulation in Northern Ireland did not
reflect the standards expected of modern environmental governance. First and foremost, it
pointed out that the regulator’s ability to command public confidence depended on its
ability to act, and to be seen to act, in a consistent, fair and predictable manner.28 However,
the review emphasised that the ‘constant message’ to the panel was of a loss of public
confidence that this was in fact the case.29 Secondly, the review pointed out that officials
working within the regulator are exposed to both a real and perceived conflict of interest in
that, as departmental civil servants, they are accountable, through the Departmental
Permanent Secretary to Ministers; thus their first priority is to serve the minister not the
environment.30 It concluded that this situation inevitably raised the suspicion and the risk
that regulatory judgment might be tailored to suit immediate political circumstances.31
Thirdly, the report concluded that extensive audit of the regulator’s function carried out in
recent years by the regional scrutiny community had created a persuasive body of evidence
confirming the misplaced nature of the argument that the regulator’s position within central
government enabled it to exert greater influence on policy-making.32
In view of the prime importance of restoring public confidence in this critical
governance process, REGNI recommended that responsibility for regulation should be
externalised to an independent environmental protection agency and set out proposals for
how the new entity should be structured. However, Foundations for the Future also
recommended that significant steps should be taken to strengthen the regulator’s ability to
enforce the rule of environmental law. In this regard, it stated that one of the key
operational characteristics the new agency should endeavour to rapidly acquire and be
recognised as having acquired is the capacity to prosecute non-compliance when
appropriate.33 To this end the review recommended the creation of an integrated
enforcement office within the agency, with control of prosecutorial decision-making and its
own dedicated legal staff.34 However, the review also recommended that reform of the
regulator be complemented by improved judicial handling of environmental prosecutions.
Although it acknowledged that equivalent research on environmental sentencing to that
undertaken in Great Britain did not exist in Northern Ireland,35 the report nevertheless
concluded that sufficient evidence of unacceptably low and inconsistent sentencing could
be gleaned from official scrutiny analysis to merit the launch of a comprehensive
programme of training by the Judicial Studies Board and consideration of the case for a
specialised Environmental Tribunal for Northern Ireland.36
Four months later a second independent analysis of the regulator was published that
chimed strongly with the messages conveyed by REGNI, this time by the CJI following a
year-long investigation of the DOE’s use of its criminal justice powers.37 Like REGNI, the
CJI recommended a strengthening of the regulator’s approach to enforcement. It
28 REGNI (n 2) para 5.2.
29 Ibid para 5.3.
30 Ibid para 5.11.
31 Ibid.
32 Ibid para 5.13.
33 Ibid para 5.37.
34 Ibid.
35 Ibid para 9.10.
36 Ibid paras 9.10–20.
37 The report contained an analysis of the performance of the department’s three Executive Agencies, which
included the environmental regulator but also the Planning Service and the Driver and Vehicle Agency: CJI,
Enforcement in the Department of the Environment (2007) .516 Northern Ireland Legal Quarterly 63(4)
highlighted not only the regulator’s overwhelming reliance on a compliance-orientated
approach to regulation38 but also that it shared the wider culture of the other executive
agencies within the department in that it viewed enforcement as a peripheral activity.39 The
inspectorate strongly urged a significant rebalancing of regulatory effort to ensure a more
explicit and robust approach to enforcement and particularly to criminal prosecution. To
this end it made extensive recommendations designed to ensure a far more integrated and
transparent approach to enforcement and build capacity through investment in specialised
skills and the forging of more effective relationships with key agencies within the wider
enforcement community. However, it was also clear that the inspectorate’s report was
influenced by both the political shift that had led to REGNI and also its recommendations.
While the CJI stopped short of joining the review and indeed other scrutiny and advisory
bodies who by this stage had articulated their support for externalisation of the regulatory
responsibility,40 its report nevertheless explicitly emphasised the need for clear procedures
to ensure the independence of the enforcement function from political and other internal
or external pressures.41 The inspectorate furthermore reflected not only an awareness of
rising public and ENGO demand for more rigorous enforcement of environmental law42
but also an explicitly stated expectation that REGNI would lead to significant reform and
the view that it was thus timely to recommend changes to the delivery of the regulator’s
enforcement function.43
The impact of restored devolution
Although both REGNI and the investigation by the CJI had been commenced during
Direct Rule, their final reports were launched into a totally changed political context. A
breakthrough in constitutional negotiations in 2006 had led to the signing of the St
Andrews Agreement and the restoration of devolution in early 2007. However, while the
first power-sharing Executive was led by the relatively moderate UUP/SDLP, this time it
was led by the political polar opposites of Sinn Fein and the Democratic Unionist Party
(DUP). Successive Assembly elections held in the run-up to restoration had resulted in the
decimation of the political middle ground and concentration of power in the extremes of
Northern Ireland’s political spectrum. The running of the d’Hondt process44 resulted in
Northern Ireland’s largest party taking control of the DOE, thus leaving the DUP with
responsibility for responding to the recommendations made by these reports. In June 2007,
Foundations for the Future was formally presented to the new devolved Minister for the
Environment (then Arlene Foster). Although the two largest parties in the power-sharing
Executive were the only two who did not submit evidence to the review process, Sinn Fein
had made public its support for the creation of an independent regulator; albeit on an all-
38 CJI (n 37) para 2.16.
39 Ibid xi.
40 House of Commons Select Committee on the Environment, Environmental Issues in Northern Ireland, HC 39
(Session 1990–1991); Northern Ireland PAC (n 7) para 42; NIAC (n 7) para 101; NIAO (n 7) paras 4.7–9;
House of Commons Committee of Public Accounts (n 7) para 21; Waste Management Advisory Board,
Northern Ireland Waste Management Strategy Review Report (2004) .
41 CJI (n 37) ix.
42 Ibid paras 2.19, 5.3.
43 Ibid vii.
44 Through which executive responsibility is allocated under the power-sharing arrangement. See, generally,
D Horowitz, ‘Explaining the Northern Ireland Agreement: The Sources of Unlikely Constitutional
Consensus’ (2002) 32(2) British Journal of Behavioural Science 193–220.Modernising environmental regulation in Northern Ireland 517
island basis.45 The DUP, however, had remained ominously non-committal as to its position
on the status of the regulator.46
In September 2007, the Northern Ireland Assembly made clear the strength of its
support for independent regulation through the debate of a motion submitted by the
Leader of the Alliance Party (David Ford, now Minister for Justice), ‘call[ing] on the
Executive to establish an independent Environment Agency’,47 which was adopted without
division, and included the defeat of a DUP attempt to amend the motion so as to deflect
and postpone an unequivocal statement of political support for independent regulation.48
However, Foster waited a year before making her formal response to the review report,
which came in the form of a statement to the Assembly made in May 2008.49 She also used
this opportunity to make her initial response to the recommendations published by the CJI.
The minister informed the Assembly that she and her party took the role of environmental
governance ‘too seriously’ to externalise responsibility for this function to an outside agency
and thus that it would not be transferred to an independent entity.50 For the reasons
discussed below, the DUP’s rejection of independent regulation was not unexpected;
however, it was nevertheless intensely controversial. Quite apart from the fact that it
signalled a halting of its government engagement with the ENGOs concerning the need for
far-reaching regulatory reform, the reasons motivating this decision, and even more
fundamentally the manner in which it was handled, provided an unsettling illustration of the
style of governance that power-sharing had unleashed and also how its distinctive dynamics
would shape the regional environmental agenda.
The Power dyNaMICS oF devoLuTIoN
First and foremost, the DUP’s ability to impose what was effectively a unilateral decision,
opposed by all of the other political parties sharing power, made real the well-documented
anticipation that power sharing would lead not only to the carving up of power but also the
replacement of one form of compromised accountability with another.51 The Executive
Committee formed by the Northern Ireland Act 1998 to exercise executive authority under
devolution comprises each of the departmental ministers and the First and Deputy First
Ministers drawn from the five political parties sharing power.52 Although the Ministerial
45 Gerry Adams MLA, President of Sinn Fein provided his endorsement of the externalisation of regulation to
an independent agency .
46 DUP’s 2007 election manifesto did, however, suggest the party was ‘open’ to considering the best mechanism
through which to implement environmental law, at DUP, Getting it Right (2007)
at 57.
47 Minutes of the Northern Ireland Assembly, Private Member’s Business, 25 September 2007
.
48 25 September 2007. Peter Weir MLA (DUP) sought an amendment of the motion which would have called
on the Assembly to simply ‘note’ REGNI’s recommendation for independent regulation but would have called
for further work to be undertaken to identify the costs and benefits of structural reform before a decision
could be taken.
49 Full Ministerial Statement on Environmental Governance .
50 Ibid 3.
51 In other words, that devolution involved the replacing of the democratic deficit inherent in Direct Rule with
the democratic deficit posed by power-sharing. For further discussion of this issue, see, for example, R
Wilford and R Wilson, A Democratic Design? The Political Style of the Northern Ireland Assembly (Constitution Unit,
University College London 2001) ; R Wilson,
The Northern Ireland Experience of Conflict and Agreement: A Model for Export? (Manchester University Press 2010);
R Wilford, ‘Northern Ireland: The Politics of Constraint’ (2010) 63(1) Parliamentary Affairs 134.
52 C Knox, Devolution and the Governance of Northern Ireland (Manchester University Press 2010) 24.518 Northern Ireland Legal Quarterly 63(4)
Code of Practice53 governing the committee’s functioning is designed to inhibit the
potential for ministerial ‘solo runs’, it nevertheless ensures only a very pale imitation of the
Westminster concept of cabinet responsibility.54 On the one hand, the code provides that
ministers must bring issues to the attention of the Executive for collective consideration in
certain situations, including any matter that ‘cuts across the responsibilities of two or more
Ministers’ or, those deemed ‘significant or controversial’ by the First and Deputy First
Minister acting jointly.55 While the status of the regulator had certainly become a
‘significant’ and ‘controversial’ issue by 2008, the DUP’s trenchant opposition to
independent regulation made it unlikely that the DUP First Minister (then Ian Paisley)
would have agreed to act jointly with his Sinn Fein Deputy First Minister (Martin
McGuinness) to require Arlene Foster to bring this matter to the Executive Committee.
However, decision-making concerning the status of the environmental regulator was also
an inherently cross-cutting issue, particularly in the Northern Ireland context where
regulatory responsibilities are exercised by at least three other government departments in
addition to the Department of the Environment.
While there was little doubt that Arlene Foster was bound by the Ministerial Code to
bring this matter to the committee for collective consideration, it was also clear that the
DUP retained the power to impose a unilateral rejection of independent regulation despite
universal political support for externalising this responsibility. Although the code requires
the First and Deputy First Ministers to seek to ensure that decisions of the committee are
reached by consensus, it also provides that where consensus proves impossible, a vote can
be taken. However, where it is requested by any three ministers, the code also provides that
the vote must be taken on a ‘cross community basis’, the rules for which require a weighted
majority of both unionist and nationalist ministers.56 It was already clear that consensus on
this issue was unlikely. Because the DUP then held five of the committee’s 12 ministerial
positions, had the issue been put to a vote, the party could insist that it be taken on a cross-
community basis and, because they comprised over 40 per cent of its unionist membership,
could defeat both a majority and even unanimous support for independent regulation
within the Executive Committee.
However, despite concerted efforts by members of the Alliance Party to force a formal
clarification of how the decision to reject independent regulation had been made, the
Executive Committee refused to confirm that it was an issue that should have been brought
to its attention for collective consideration, or even to clarify whether a vote had been taken.
During the Assembly debate of Foster’s decision to reject independent regulation, Alliance
Party MLAs57 argued that this decision was inherently cross-cutting and thus sought
clarification as to whether it had been brought to the Executive Committee for collective
consideration.58 In response, Foster stated that while the committee had been informed of
her decision ‘out of courtesy’, oddly she did not consider the matter to be a cross-cutting
53 .
54 Knox (n 52) 25 and Wilford (n 51) 146.
55 Knox (n 52) para 2.4(i) and (vi).
56 Para 2.12 of the Code of Practice provides that a vote taking on a cross-community basis shall be governed
by s 4(5) of the Northern Ireland Act 1998, which in turn provides that ‘cross-community support’, in relation
to a vote on any matter, means either (a) the support of a majority of the members voting, a majority of the
designated Nationalists voting and a majority of the designated Unionists voting; or (b) the support of 60 per
cent of the members voting, 40 per cent of the designated Nationalists voting and 40 per cent of the
designated Unionists voting.
57 Member of the Legislative Assembly (NI).
58 Assembly debate 7 (David Ford,
Alliance Party) and 12 (Dr Farry, Alliance).Modernising environmental regulation in Northern Ireland 519
one59 – despite emphasising in a later part of her statement that externalising this
responsibility would affect the powers of several other Northern Ireland government
departments.60 A few days later, 30 MLAs supported another initiative mounted by David
Ford MLA, this time a petition submitted under s 28B of the Northern Ireland Act 1998,
which empowers Assembly members to seek a referral of a minister’s decision to the
Executive Committee where they are considered to have acted in breach of the code, or
where a decision relates to a matter of public importance. Following consultation with
Assembly parties, the Speaker formally confirmed that the matter had been deemed ‘a
matter of public importance’ and thus that a valid petition had been lodged.61
Although MLAs were successful in forcing the Executive to formally consider the issue,
the rules governing the matters that must be addressed by the committee when responding
to an Assembly referral rendered this a pyrrhic victory. Consistent with s 28B, the
committee simply confirmed its view that the minister’s decision was not taken in
contravention of the Code of Practice. It furthermore confirmed the committee’s view that
decisions relating to environmental governance were ‘significant and controversial’ and also
that it ‘had noted’ Foster’s decision to reject independent regulation. Crucially, the
committee was not required to and did not take the opportunity to clarify whether the
minister’s decision had been taken with the Executive’s support, or indeed even if a vote
had been taken. Rather bizarrely, its response went on to state that future decisions by
Foster’s successor, concerning the implementation of the alternative reform agenda she
proposed (outlined below), would be brought to the committee’s attention on the grounds
that they would require its specific approval under the Ministerial Code and s 28A of the
Act. The extraordinary obfuscation surrounding how the decision to reject independent
regulation was made effectively concealed the unedifying reality that had Foster been forced
to comply with the terms of the Ministerial Code, the DUP could simply have used its tribal
veto to impose a minority, unilateral position in the face of universal opposition by its
partners in the power-sharing Executive. To add insult to political injury, Arlene Foster was
furthermore shielded by her party from the consequences of this intensely unpopular
decision by an immediate transfer to a new and more senior ministerial position leading the
Department of Enterprise, Trade and Investment.62
However, quite apart from what this process revealed as to the nature of power-sharing
and in particular the very constrained form of democratic accountability it entailed, it also
underlined the DUP’s pronounced antipathy to participative governance.63 Although Foster
could not avoid making a formal written response to the recommendations of the CJI given
that it was a report published by a statutory scrutiny body, the DOE did not provide the
detailed response to the review of environmental governance that would normally have
been expected upon receipt of a report commissioned by government. Indeed, it even failed
to notify the chair of the review panel of the minister’s intention to make a statement to
the Assembly. However, Foster underlined her rejection of deliberative decision-making,
and in particular the ENGO coalition, by also announcing that the Environment and
59 Ibid 7 (Minister for the Environment).
60 Ibid discussed below.
61 Under s 28B(3), confirmed on 9 June 2008, Speaker’s Business .
62 13 days later, on 9 June 2008.
63 Although the DUP is not alone in this position amongst the region’s political parties, its particular hostility to
the participative governance has been addressed by: C McCall and A Williamson, ‘Governance and
Democracy in Northern Ireland: The Role of the Voluntary and Community Sector after the Agreement’
(2001) 14(3) Governance: An International Journal of Policy and Administration 363; and V Bell, ‘Spectres of
Peace: Civic Participation in Northern Ireland’ (2004) 13(3) Social and Legal Studies 408.520 Northern Ireland Legal Quarterly 63(4)
Heritage Service would be relaunched as the ‘Northern Ireland Environment Agency’
(NIEA).64 The cynical suggestion that the ENGO coalition’s demands for independent
regulation could be satisfied through a simple rebranding exercise was widely criticised, but,
combined with the DUP’s decision to replace Arlene Foster as Environment Minister with
Sammy Wilson, an avowed opponent of the environment lobby and vocal climate sceptic,65
represented not only a powerful snub to the ENGO coalition but also an ultimately
successful attempt to suppress this nascent lobby.
The IMPaCT oF ‘hIgh’ CoNSTITuTIoNaL PoLITICS
Although Foster’s rejection of the recommendation for independent regulation was largely
an exercise in the use of crude political power, it was nevertheless clear that the decision
was also strongly influenced by the ‘high’ politics of the constitutional transition, which
concerned the commandeering of political power by the new administration but also the
inherent fragility of power-sharing itself. From the outset of her statement to the Assembly,
Foster characterised both REGNI and the CJI investigation as processes commenced
during the Direct Rule period thus obviating a sense of political ownership as to their
findings.66 However, the pronounced hostility directed towards the recommendations made
by REGNI also stemmed from the distinctive political dynamics that had characterised the
constitutional transition. Whereas policy stagnation had for decades been the traditional
angle of repose under Direct Rule, the administration that governed Northern Ireland
following the collapse of power-sharing in 2002, and particularly during Peter Hain’s tenure
as Secretary of State from 2005–2007, was defined by the proactive development of a series
of major policy initiatives, notably the abolition of the 11+ educational selection process,
the introduction of domestic water charges based on the capital value of (then) escalating
house prices, and proposals to significantly curtail Northern Ireland’s historically lax rural
development policies.67 All touched core cultural and economic nerves within the region.68
However, while the environment and the environment lobby were undoubted
beneficiaries of this ‘policy spring’, the agricultural industry and landowners were notable
losers, and at a time when advanced EU infraction pressure had also forced Northern
Ireland to implement the EU Nitrates Directive on a ‘total territory’ basis, thus radically
64 Ministerial Statement (n 49) 3.
65 Sammy Wilson’s hostility to the environment and climate lobby is well documented, for example, referring to
the campaign to halt climate change as an ‘hysterical pseudo-religion’ at BBC News Online, ‘Wilson Row over
Green Alarmists’, 5 September 2008 . His position in this regard
has been furthermore covered in the ENDS Reports 401 and 402 and by The Guardian, 10 February 2009
. Wilson’s
prioritisation of development over environmental protection in the field of planning is also well documented,
for example: ‘Government policy and decision making has been heavily influenced by the green lobby, which
I believe has been detrimental to the British economy.’ This position statement on the environment and a
number of other areas is outlined on his DUP website .
66 Ministerial Statement (n 49) 1.
67 The scale of opposition to more constrained rural development is outlined at .
68 Some sense of the scale of the political furore surrounding the planned introduction of domestic water-
charging is provided in the Direct Rule administration’s summary of the initial consultation responses at:
Department of Regional Development, Integrated Impact Assessment of the Government’s Proposals for Reform of
Water and Sewage Services (2005) , although this was also subject to
intense media coverage and stakeholder litigation. Hain’s decision to abolish the 11+ is set out at
. Intense unionist opposition to this policy even
threatened to destabilise power-sharing. A flavour of this debate is provided by H McDonald, ‘Ulster
Unionists Demand Deal on 11plus before Backing Power Sharing’, 12 February 2010, The Guardian
.Modernising environmental regulation in Northern Ireland 521
intensifying this industry’s exposure to the costs and process of environmental regulation.69
In part, policy modernisation was motivated by UK Treasury demands that Northern
Ireland pay its way and by Hain’s particular interest in the environment. However, it was also
perceived as a mechanism for mobilising local public pressure to render detachment from
devolved power increasingly uncomfortable for local political parties, thus assisting in
levering an end to the deadlock in constitutional negotiations that had kept devolution in
suspension for five years. Not surprisingly, when devolution was finally restored in March
2007, environmental policy modernisation and the environment lobby became the subject
of a pronounced political backlash from local politicians. The rejection of the high-profile
campaign for independent regulation, like the immediate stalling of the other major policy
initiatives progressed during Hain’s term in office,70 became part of the political narrative
that defined the restoration of devolution; namely, that power had been wrested from the
resented Direct Rule administration. However, this decision was also used by the DUP to
consolidate its particular relationship with one of its key political allies; namely, the
agricultural industry, whose representative body (the Ulster Farmers’ Union) had been alone
in opposing the creation of an independent environment agency.
A final but critical factor militating against an immediate commitment to create an
independent regulator concerned its potentially destabilising implications for the fragile
arrangements created to support power-sharing. Although a reality only hinted at in the
minister’s statement, there was little doubt that externalising the Environmental and
Heritage Service would have involved the removal of a significant part of the critical mass
of the DOE thus undermining its viability as political portfolio. In addition, as Foster
herself pointed out, three other Northern Ireland departments also exercised significant
duties in this context.71 The creation of a coherent independent regulator would have
confronted an inherently unstable administration with the immediate prospect of
renegotiating how executive responsibilities should be reallocated across central
government, whose original distribution had been informed not by concern to maximise
policy synergies or regulatory outcomes, but to ensure that no one political party dominated
the control of major policy sectors.72 Indeed, though many were sceptical of Foster’s stated
commitment to instigate an independent review of her decision in 2011, it was arguably an
implicit recognition of the reality that a reconfiguration of central government would be
more appropriate in the event that power-sharing proved sufficiently stable to survive at
least the period of the first mandate.
a new reform agenda emerges
However, though Foster rejected the case for structural reform, she nevertheless appeared
to acknowledge the need for improved regulation and used her statement to the Assembly
to set out her own agenda in this regard. First, the minister acknowledged the need to
improve the enforcement response to environmental crime73 and, secondly, announced her
commitment to ensuring that environmental regulation would henceforth be premised
69 91/676/EEC. OJ L375/1. The significance of this approach to implementation is discussed by Turner (n 4).
70 Amongst the very first announcements made by the new devolved administration was its decision to halt the
imposition of domestic water charges and to launch an independent review of the policy, 10 May 2007
. This was followed shortly afterwards by the launch of a review
of Draft PPS 14 on rural development . The battle concerning the abolition of the 11+ continues to be a source of significant
disagreement between Sinn Fein and unionists and remains unresolved to the present day.
71 Ministerial Statement (n 49) 2.
72 Knox (n 52), ch 2.
73 Ministerial Statement (n 49) 6.522 Northern Ireland Legal Quarterly 63(4)
firmly on the principles of ‘better regulation’.74 However, Foster also explicitly reassured
the Assembly that she wished to ‘see clear blue water between the role of the core
Department as policy maker and legislator and the role of the NIEA as protector, regulator
and enforcer’.75 Thus, she implicitly recognised that restoring the regulator’s credibility
would depend fundamentally on how well the DOE could assure the public and regulated
community of the impartiality of regulatory decision-making. Although her immediate
successor (Sammy Wilson) dismissed further calls by the Assembly later in 2008 for a
commitment to externalise regulatory responsibility,76 arguing that a further review of the
‘new’ Agency was premature,77 sufficient time has now elapsed to consider whether the
Ulster Farmers’ Union were justified in their conviction that effective regulation could be
ensured through a process of internal reform.
SIgNS oF ProgreSS
For almost all of the period since Foster’s statement, the DUP remained in control of the
DOE. Despite the disintegration of the ENGO coalition following the powerful rejection of
its reform agenda, Foster and her successors (Sammy Wilson and Edwin Poots) worked to
implement a reform agenda, which produced important advances in delivering a more robust
regulatory response to the region’s distinctive problems with waste crime. Whereas the
sophisticated standards of waste regulation required under EU law had been implemented in
Britain by 1990, over a decade elapsed before the equivalent controls were operationalised in
Northern Ireland and then only in response to EU enforcement action.78 In addition to
pressure to come to terms quickly with its new regulatory responsibilities, the regulator also
faced an escalating problem of illegal transfrontier shipments of waste into the jurisdiction. By
2002, the combination of unprecedented volume of waste arising from Ireland’s then ‘tiger’
economy, differences in the landfill taxes applying on each side of the Irish border, weak
environmental regulation in both jurisdictions and an extensive land border had created the
conditions for a highly profitable black market in illegal cross-border waste transport and
dumping, which was being exploited on a significant scale by organised criminal gangs with
possible paramilitary links.79
In order to respond to criticism of the regulator’s failure to deal effectively with this
problem,80 the Environment and Heritage Service established a dedicated Waste Crime
Unit in 2004, which launched not only an intensive programme of criminal prosecutions81
74 Ministerial Statement (n 49) 3–4.
75 Ibid 6.
76 At the end of 2008 another Alliance Party motion was adopted by the Assembly (although amended by the
SDLP), reiterating its concern at the minister’s failure to create an independent regulator, expressing its view
that the present entity was unable to meet the environmental challenges facing the region and calling for
externalisation by the end of the first mandate: 11 November 2008 .
77 Ibid.
78 The legislative framework for applying modern waste management licensing in the jurisdiction was introduced
with the enactment of the Waste and Contaminated Land (NI) Order 1997, but the transfer of responsibility
for waste regulation from local government to the Environment and Heritage Service was not operationalised
until 2003, Turner (n 4).
79 Discussed in particular by NIAC (n 7) para 88, Ev 203, Ev 6. Recent estimates suggest that between
2001–2004, approximately 8 per cent (approximately 250,000 tonnes) of the waste generated in Ireland was
illegally dumped across the border in Northern Ireland. See T Hogan, ‘Files will be sent to DPP on Illegal
Dumping’, Irish Independent, 7 May 2012 .
80 Ibid NIAC. See also the discussion provided by the scrutiny reports on waste management (n 7).Modernising environmental regulation in Northern Ireland 523 but also began to make innovative use of new financial investigation powers contained in the Proceeds of Crime Act 2002 in order to strip the profits from serious waste crime. Following an expansion of the range of statutory bodies permitted to use these powers in 2005,82 the DOE had applied for the accreditation of officials within the Waste Crime Unit.83 Working initially with the regional Assets Recovery Agency (ARA) from 2005–2008, the Environment and Heritage Service became the first environmental regulator in the UK to obtain a criminal confiscation order against a defendant convicted of serious waste crime,84 and by 2008 was the first such body to employ fully qualified financial investigators. Foster’s statement to the Assembly highlighted these successes and committed to translating them across the agency as a whole. To this end she committed to establishing a dedicated Environmental Crime Unit (ECU),85 designed to provide the integrated enforcement capacity called for by REGNI and the CJI. In addition, she committed to a substantial programme of investment to support recruitment and training to develop its capacity.86 Although the dawning age of national austerity ultimately inhibited the full investment promised by Foster,87 her successor Sammy Wilson oversaw the creation of the new ECU later in 2008. This unit now leads the UK in the use of financial legislation to strip the profits from serious waste crime.88 It has furthermore made concerted efforts to embrace the more sophisticated and intelligence-led approach to enforcement called for by the CJI, forged close partnerships with its Irish and UK counterparts and the specialised agencies engaged in tackling serious organised crime within the region,89 and has invested significantly in information management systems designed to enable it to collate data concerning those engaged in waste crime. 81 There were 24 prosecutions for waste offences in 2004, 61 in 2005 and 116 in 2006. This fell to 68 in 2007, but increased slightly in 2008 to 74. These figures are based on information provided by the NIEA in 2011. 82 Pursuant to the Proceeds of Crime Act 2002 (References to Financial Investigators) (Amendment) Order 2005, No 386. 83 Accreditation was received from the National Policing Improvement Agency and further discussed by House of Commons NIAC, Third Report, Fuel Laundering and Smuggling in Northern Ireland, HC (2010–2012) 1504, Q410, Ev 72. 84 The case involved the illegal dumping of around 4000 tonnes of municipal waste from the Irish Republic in the early 2000s, which resulted in the making of a confiscation order of £80,868 in September 2007 following the defendant’s conviction in May 2006 for two counts of keeping and disposing of waste [2007] NICC 53. 85 Ministerial Statement (n 49) 6. 86 Ibid 3. It should be noted Foster did not disaggregate between the investment directed towards better regulation and that directed towards the ECU, but committed to a total investment of £0.77m in 2008–2009 and £1.98m in 2010–2011. 87 While the ECU was designed to operate with a staff of 41, as of December 2011 only 25 staff were employed by the unit and the majority of vacancies existed at senior levels, although in early 2012 the new Minister for the Environment, Alex Attwood (SDLP), committed to hiring a further 11 staff. See BBC News Online, ‘Northern Ireland environmental crime unit in recruitment drive’, 23 December 2011 . 88 In partnership with the former Assets Recovery Agency (now the Serious Organised Crime Agency (SOCA)), NIEA secured a total of £833,120 in five confiscation cases. At the time of writing, NIEA’s ECU has independently secured 10 confiscation orders subsequent to Crown Court convictions which total £862,300. In total, NIEA has through 15 confiscation cases secured £1,695,420 from convicted waste criminals. The confiscation regime has not yet been applied to environmental crime in Scotland thus far. Though the Environment Agency (EA) has recently started to make use of these powers, they have been used to a relatively lesser extent than in Northern Ireland. Information provided by the EA in March 2012 indicates that from 2006–2011, 38 confiscation orders have been made subsequent to EA waste prosecutions, but the vast majority (22) of these were in 2011 and 10 of those cases were for significantly smaller sums of under £5000. Source: information provided to the authors subsequent to requests made to the agencies under the Freedom of Information Act 2000. 89 In particular, the SOCA, HM Revenues and Customs, the Police Service of Northern Ireland and the Ports Authority.
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